Maina v Standard Group Limited (Cause 1922 of 2016) [2023] KEELRC 2086 (KLR)
The bottom line
#A Kenyan court awarded an editor Kshs 3.5 million after his employer cut his contractual salary, confirming old payslips cannot rewrite your employment contract.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 90 of the Employment Act
The suit was not wholly time barred; unlawful salary deductions constitute continuing injury, with recovery limited to the three years preceding filing of suit.
Section 90 reduces the limitation period for employment claims to three years but contains a proviso for continuing injury, allowing suit within twelve months of cessation. The court held that repeated wrongful salary deductions are separate acts cumulatively amounting to continuous damage, so the claimant could sue, but recover only deductions effected between September 18, 2013 and September 19, 2016.
Whether the kshs 550,000/- contractual figure was basic pay or composite gross pay
The contract expressly provided kshs 550,000/- as basic pay; the respondent could not rely on payslips to recharacterise it as including a car allowance.
The contract's clause 5 described the sum as 'basic pay' without any allowance. The respondent's witness admitted basic pay differs from gross pay. Following Grain Pro (Kenya) Inc v Andrew Waithaka Kiragu, payslips do not constitute the contract and cannot vary express terms. To hold otherwise would rewrite the contract, which courts cannot do.
Entitlement to reliefs
The claimant was entitled to terminal dues computed on the contractual basic salary for deductions within the limitation period; the pre-September 2013 arrears claim of Kshs 400,000 was refused.
Having found the salary reductions unlawful and that terminal dues were computed on suppressed basic pay figures, the court awarded the pleaded cumulative figure of Kshs 3,928,032 less the Kshs 400,000 attributable to the out-of-time May–June 2013 period, arriving at Kshs 3,528,032, plus costs and interest.
Legal principles established
#- Where an employer unlawfully deducts an employee's salary, each deduction is a separate incident but cumulatively a continuing injury under section 90 of the Employment Act; recovery is limited to deductions within the three years preceding suit.
- A payslip is not a contract and cannot be used to vary or explain an express unambiguous term of a contract of employment.
- Courts may not rewrite contracts for parties; a figure expressly contracted as 'basic pay' cannot be recharacterised as composite gross salary.
Court orders
#- 1.Judgment entered in favour of the claimant for Kshs 3,528,032.00, a cumulative figure under the various heads pleaded
- 2.Costs of the suit to the claimant
- 3.Interest at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, section 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Standard Group Limited (Cause 1922 of 2016) [2023] KEELRC 2086 (KLR)", Case Analysis (2023). ELRC Cause No. 1922 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2086/eng@2023-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.